During the period of marriage, the spouses purchased an apartment, the ownership of which was registered in 2011 in the name of one of the spouses, who applied to the tax authority to receive a property tax deduction provided for in subparagraph 2 of paragraph 1 of Article 220 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) , and received part of this deduction for the 2011 tax period. In August 2012, the husband died.

According to subparagraph 2 of paragraph 1 of Article 220 of the Code, when determining the size of the tax base, the taxpayer has the right to receive a property tax deduction in the amount of expenses actually incurred by the taxpayer, but not more than 2,000,000 rubles, in particular, for the purchase of an apartment, room or share(s) in them.

If the purchaser of an apartment died after he began receiving the property tax deduction due to him, the right to receive the remainder of the property tax deduction does not pass to the person inheriting his share, since the Code does not provide for the transfer to the heir of the right to the property tax deduction belonging to the testator .

At the same time, Articles 33 and 34 of the Family Code of the Russian Federation establish that property acquired by spouses during marriage is their joint property, and the legal regime of the property of the spouses is the regime of their joint ownership.

At the same time, the property acquired by the spouses during the marriage (common property of the spouses) includes the income of each spouse from labor activity, entrepreneurial activity and the results of intellectual activity, pensions received by them, benefits, as well as other monetary payments that do not have a special purpose ( amounts of financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was purchased or in the name of which or which of the spouses contributed funds.

Paragraph 1 of Article 256 of the Civil Code of the Russian Federation also establishes that property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.

From the above it follows that the spouse - heir of the deceased spouse has the right, on an independent basis, to apply in the prescribed manner to the tax authority to receive a property tax deduction, if he has not previously used such a deduction, in the amount of the part of the property tax deduction not used by the deceased spouse, regardless of from which spouse the contract for the purchase of the apartment, the right of ownership of the apartment and documents confirming the fact of payment of funds for the expenses incurred for the purchase of the apartment were drawn up.

In this case, the tax authority must be presented tax return in form 3-NDFL and other documents provided for in subparagraph 2 of paragraph 1 of Article 220 of the Code for obtaining a property tax deduction.

A taxpayer who pays tax on income (except for dividends) in the territory of the Russian Federation at a rate of 13% has the right to receive a property deduction in the amount of up to 2,000,000 rubles if he acquires ownership of housing with his own funds or borrowed funds. Some categories of citizens listed in paragraph. 3 tbsp. 224 of the Tax Code of the Russian Federation, although they receive income taxed at a rate of 13%, cannot receive such a deduction.

However, sometimes the question arises: “ Is it possible to get a tax deduction when buying an apartment from relatives?

To answer it, it is necessary to understand first of all who, for tax purposes, the legislator classifies as relatives or, as the Tax Code of the Russian Federation says, interdependent persons.

According to clause 11, part 2, article 105.1 of the Tax Code of the Russian Federation, the following are classified as interdependent persons:

  • wife husband);
  • parents (adoptive parents),
  • children (adopted),
  • full and half (when the same father or mother) brothers and sisters,
  • guardian and ward.

The transaction between them is considered to be concluded under the influence of dependence, which affects the price of the purchased residential premises up or down.

In addition to the purchase and sale transaction, other transactions can be signed, including between relatives, and tax legislation regulates the resulting legal relations in different ways.


Tax benefits when concluding an apartment donation agreement with a close relative

According to Article 572 of the Civil Code of the Russian Federation, the gift agreement is recognized as a gratuitous transaction and the only one who receives the gift is considered to have received income, and the opposite party bears the costs. Therefore, for tax purposes, it is the donee, and not the donor, who is required to pay tax in the amount of 13% of the value of the gift.

However, the legislator has provided a basis for exemption from payment of this tax if the parties to the transaction are close relatives, the circle of whom is defined in paragraph 2 of clause 18.1 of Article 217 of the Tax Code of the Russian Federation. The norms of the Family Code of the Russian Federation apply to these legal relations and the circle of persons is expanded. Grandparents and grandchildren are added to the above persons.

Example

In 2016, the grandfather gave his grandson an apartment with a cadastral value of 5,356,000 rubles. The grandson who accepts the gift will be exempt from paying tax.

These relations between relatives do not fall under the general rule on property deductions. Here, it is precisely the exemption from the obligation to pay tax that is provided.

Example

In 2016, the mother-in-law gave her son-in-law ½ share of the apartment, and the other half to her daughter. In this situation, the daughter will be exempt from paying 13% tax, and the son-in-law must pay 13% (and if the son-in-law is not a tax resident of the Russian Federation, then 30%) tax amount on the value of the gift, which, in accordance with Part 2 of Article 228 of the Tax Code of the Russian Federation is determined independently.

Tax deduction when concluding a purchase and sale agreement with a close relative

The buyer can expect to receive a deduction.

However, if the contract is concluded between persons in a close relationship, tax deduction when buying an apartment from relatives is not allowed, since they are classified by the legislator as interdependent persons, an exhaustive list of which is given in clause 11, clause 2 of Article 105.1 of the Tax Code of the Russian Federation and indicated above.

Example

The mother sold her son an apartment, the value of which is equal to the cadastral value and corresponds to the market value. It does not follow from the essence of the transaction that the determination of the price was in any way influenced by family relations. But even in this case, you will not be able to get a deduction.

In judicial practice, there were cases before 2012 when the judicial authorities sided with the taxpayer and recovered the amounts due for refund. However, today, such practice cannot be applied to transactions completed after 01/01/2012. This is stated in the letter of the Ministry of Finance of the Russian Federation dated January 31, 2012 No. 03-04-08/9-12, communicated to the tax authorities by letter of the Federal Tax Service of Russia dated April 19, 2012 No. ED-4-3/6609@

In 2019, the tax deduction for purchasing an apartment from relatives did not undergo any changes.

Tax refund when buying an apartment from relatives

Despite the practice that has been established for a long time, the question constantly arises of how return personal income tax when buying an apartment from relatives, since there is nothing easier than concluding a profitable contract with a loved one.

The answer to this is unequivocal - there is no legal way, even if the surnames of the parties to the transaction are different, during a desk audit the fact of relationship can be established.

In some cases, employees of the Federal Tax Service ask you to draw up a document in which you inform that you are not in a close relationship with the seller, since There is no tax deduction when buying an apartment from a relative.

But don't be upset. There is a way out of almost any situation. You can, for example, resell an apartment through third parties.

Example

The father wants to sell his apartment to his son, Ivan, but so that he receives a deduction, since the latter is an income tax payer. In this situation, the parent sells the apartment to his friend, and he resells it to Ivan. And so that the intermediary friend does not pay tax on the sale, he must sell it for the same price as he bought it, without receiving income from the resale.

Tax deduction when buying an apartment from your mother-in-law or mother-in-law

Previously, the legislator classified the relationship of daughter-in-law - mother-in-law, son-in-law - mother-in-law as a relationship of property. To date, this concept has been excluded from the Tax Code of the Russian Federation.

Therefore, these persons are not considered relatives between whom the purchase and sale transaction affects the receipt of a tax deduction.

But here too there are some peculiarities. If there is a mother-in-law and mother-in-law, then there are married spouses. And as you know, the presence of a registered marriage affects the regime of joint ownership. When concluding an agreement with the mother-in-law on one side and the spouse on the other, the deduction may be denied. Because the woman is in a close relationship with one of the spouses (whose shares are not defined).

Resourceful citizens have found a way out of this situation by concluding marriage contracts, according to which the property becomes the property of only one spouse who is not related to the seller.

Example

The mother-in-law is selling an apartment to her son's family. The latter enters into a marriage contract with his wife, according to which the property after the transaction will become her personal property. The daughter-in-law, who is not a relative, will receive a deduction in full. (Problems will arise only in the event of divorce and the husband attempts to sue, allegedly according to the law, his share in the apartment).

In practice, there are cases when real estate is sold through third parties, but the funds for the purchased apartment are paid directly. In this situation, property deduction if money is transferred to close relatives, is not relied upon and will not be provided.

In accordance with clause 7 of Article 105.1 of the Tax Code of the Russian Federation, at the request of the Federal Tax Service Inspectorate, the court may recognize other persons as dependent on each other, who are not specified in Part 2 of Article 105.1 of the Tax Code of the Russian Federation, if the substance of the transaction, and in this case the price of the real estate sold, was influenced influence of the presence of persons in the property. The burden of proving this circumstance will rest entirely with the applicant. But practice shows that the Federal Tax Service practically does not address such requirements.

Deduction under an agreement with father or mother, daughter or son

Regardless of the component of the transaction for the purchase of housing between persons who are related, such agreements do not fall under Article 220 of the Tax Code of the Russian Federation and do not give rise to obligations for the Federal Tax Service to refund income taxes.

The Supreme Court of the Russian Federation put an end to all disputes, which, in its ruling dated June 3, 2015 No. 38-KG15-3, explained in detail the impossibility of using the deduction in such situations.

This rule, of course, does not apply to cases of concluding a transaction between a stepmother or stepfather, on the one hand, and a stepson (stepdaughter) on the other hand. Formally, these persons may be called mother and father, daughter or son, but legally they will not be related.

How does the tax office know that an apartment was purchased from a relative?

There are often cases when, based on last names and other data, tax officials cannot determine whether persons have any relationship with each other, and let’s say they did not ask you to indicate in your application that you are not related to the seller of the real estate.

If in 2012, which is almost over, you bought/built a house/apartment, then it’s time to think about getting a property tax deduction. Having issued it, you will be able to withdraw 260 thousand rubles from the state. (or more if the property was purchased with a mortgage). To receive a deduction, you must submit the following year (after purchasing real estate) to the district tax application, tax return and papers confirming the fact of purchasing the home and the amount of expenses incurred. This mechanism was in our section.

However, many of the citizens who have recently acquired housing have already become concerned about the issue of obtaining a deduction and have applied for it (at their main place of work). This is also good, especially since it allows you to do without filling out a declaration. However, our conversation today will be interesting both for those who have already issued a property deduction through their employer and for those who are just planning to run to the district tax office. And also for those who have already been using the deduction for several years. And that's all, because we will talk about subtle and sometimes very confusing things - about inheriting a tax deduction and about registering a deduction for a pensioner.

The state budget is not included in the will

Just in case, let me briefly remind you of the essence of the property tax deduction issued when purchasing a home. According to paragraphs. 2 p. 1 art. 220 of the Tax Code of the Russian Federation, a citizen can demand that the budget return to him the income tax that a person paid on the amount spent on the purchase of housing. That is, we are talking about paying a person 13% (personal income tax amount) of the value of the property he purchased. True, there is a caveat: the tax is refunded on an amount not exceeding 2 million. This means that even if very expensive housing is purchased, the budget will return no more than 260 thousand rubles to the citizen. (amount of income tax paid on 2 million rubles).

Another important point: the state will not give the tax amount to the person immediately, but, most likely, over several years. In fact, a citizen will annually receive from the budget the amount of personal income tax he paid for the previous year. If a person’s official income is small, then receiving a deduction can take many years. Let’s say we are talking about a resident of the Sverdlovsk region who receives the regional average salary of 23 thousand rubles. per month (or 276 thousand per year). The budget will return him 35.88 thousand rubles annually. (13% of 276 thousand). If a citizen’s income does not grow, he will receive a deduction for 8 years. Please note that this is the case if the property was not purchased with a mortgage. If a housing loan was used, then the deadline for receiving a tax deduction will be.

Actually, there is a danger that the recipient of the tax deduction (who is also the owner of the apartment) will leave this mortal world before the budget fully pays him off. Consequently, the question arises about the possibility of transferring the right to a tax deduction by inheritance. In principle, the Tax Code does not provide for such a possibility. However, in some cases inheritance is still feasible. This issue was addressed in the official letter of the Ministry of Finance of the Russian Federation No. 03-04-08/4-311 dated September 19, 2012.

It says in particular that if the testator was the spouse of the heir, and the housing was acquired in their common shared ownership, then regardless of which spouse has documents confirming the fact of payment for the acquired real estate, the heir-spouse has the right to receive a property deduction in part of the inherited share of the deceased spouse.
There is another scheme according to which the heir of a deceased homeowner has the right to take advantage of the deduction. True, it works only if the buyer himself did not apply to the tax office for a deduction and the heir contributed money to the purchase of housing. If the owner of the property dies, the heir can apply for a deduction. True, he will have to provide papers confirming that he incurred the costs of purchasing this object.

Pensioners - three years back

Until the beginning of 2012, a non-working pensioner (who does not have income subject to personal income tax at a rate of 13%) could not take advantage of the tax deduction. If there is no tax, then there is no deduction. But on January 1 of this year, Law No. 330-FZ “On Amendments to Part Two of the Tax Code...” came into force, which said approximately the following: if a pensioner had white income in previous years, then he can apply for a tax deduction on account of previous years. And then he will receive back the tax he paid in those very previous years, but not more than three years. Please note that taxes for the years preceding the purchase of an apartment are not refunded to anyone except pensioners. However, with this category, not everything is so simple. Many questions arise about which years the tax can be refunded. It is clear that this is fundamental for a pensioner. After all, if low-income years are included in the deduction, then the deduction will be thin, and vice versa.

Alas, the legislator has deprived older Russians of the opportunity to choose the period for which the deduction could be applied. After the entry into force of Law 330-FZ, the following wording appeared in the Tax Code regarding the mentioned category of home buyers: “... the three-year period for the return of overpaid tax is counted starting from the tax period immediately preceding the tax period in which the carryover balance of the property tax deduction was formed.” .

To explain to ordinary Russians the essence of this spell, a whole bunch of official acts were issued. For example, the Federal Tax Service, in its letter No. ED-4-3/16501 dated October 2, 2012, considers the following example: a certain citizen bought a home in 2008 and in the same year left his job and retired. The following year, he received a deduction for 2008 (when he still had taxable income). When Law 330-FZ came into force in 2012, a person filed a tax return for 2005-2007 and asked if he could receive the tax paid in that period. It turned out that it is impossible! As the Federal Tax Service explained: “when submitting a tax return in 2012, this tax period is not the tax period immediately following the tax period in which the balance of the property tax deduction was formed (2008), the number of tax periods to which the above balance can be carried forward, decreases accordingly and it is not possible to transfer the unused balance of the property tax deduction to the tax periods of 2007, 2006 and 2005.”

To be honest, the situation has clarified quite a bit. Much of the problem is still a mystery. Although one can guess that “the period in which the carryover balance of the tax deduction was formed” is the year in which the person last received a tax deduction according to the normal scheme (without the reverse transfer over time provided for pensioners). If you already have EVERYTHING and there is nothing further to receive, then you need to take last year and count back three more from it. For these three years you can get a deduction.

Our guess is confirmed by the explanation of the Federal Tax Service for the Tver Region published on the Tax Portal. It also provides an illustrative example: “If a pensioner purchased an apartment in 2012, has received a pension since September 2011 and does not work, he can submit tax returns in Form 3-NDFL for 2011, 2010 and 2009.”
From all that has been said, at least, it becomes clear that the innovation proposed in Law 330-FZ (carrying over deductions to previous periods) will only help those who, having bought a home, left work for three years. Moreover, only if a person does not waste time and applies for a deduction the very next year after purchasing a home.

In accordance with clause 5 of Article 220 of the Tax Code of the Russian Federation, a property tax deduction for the purchase of an apartment/house/land does not apply in cases where the transaction is made between individuals who are interdependent. Interdependent persons also include a certain circle of relatives of an individual.

The list of relatives who are considered interdependent and from whom a tax deduction cannot be used when purchasing housing was changed from January 1, 2012 by amending Article 220 of the Tax Code of the Russian Federation. As a result of the changes, the list of “interdependent relatives” was significantly narrowed, which, of course, was a favorable factor for taxpayers. However, it is important to note that the changes apply only to transactions concluded from January 1, 2012. Real estate purchase transactions completed before 2012 are governed by the old rules.

In this regard, we will separately consider the features of property deductions in real estate purchase and sale transactions between relatives of prisoners before and after 2012.

Property deduction when purchasing housing from relatives after 2012

For all transactions concluded starting from January 1, 2012, interdependent persons from whom a deduction cannot be obtained when purchasing housing are determined in accordance with Art. 105.1 Tax Code of the Russian Federation.

In paragraph 2 of Article 105.1, the list of interdependent relatives is fully specified. They are recognized as: spouse, parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardian (trustee) and ward. When purchasing housing from these relatives, you cannot receive a property tax deduction (Letter of the Ministry of Finance of Russia dated April 26, 2017 No. 03-04-05/25014). When purchasing from any other relatives, there are no restrictions on tax deductions.

Example: In 2018, Ivanov I.I. I bought an apartment from my grandfather. Since the grandfather is not among the interdependent persons under Article 105.1 of the Tax Code of the Russian Federation, Ivanov I.I. will be able to receive a tax deduction for the purchase of an apartment.

Example: In 2017 Petrov P.P. I bought an apartment from my mother and wanted to get a tax deduction for this apartment. In deduction to Petrov P.P. was rightfully refused, since according to clause 2 of Article 105.1, mother and son are interdependent persons, and in purchase and sale transactions between them, a deduction cannot be provided.

Example: Vasilyeva V.V. I bought an apartment from my husband's brother. Since the husband’s brother is not included in the list of interdependent persons in Article 105.1 of the Tax Code of the Russian Federation, Vasilyeva V.V. can receive a property tax deduction when purchasing this apartment.

The above list of relatives is exhaustive, however, according to paragraph 7 of Article 105.1 of the Tax Code of the Russian Federation, the court may recognize persons as interdependent on other grounds not provided for in paragraph 2 of this article. That is, formally, this clause allows the tax office to go to court to establish interdependence when purchasing housing from other relatives. However, in practice, we have never encountered a situation where the tax service would deal with this.

Property deduction when buying a home from relatives before 2012

Until January 1, 2012, the version of Article 220 of the Tax Code of the Russian Federation was in force, according to which the interdependence of individuals was determined in accordance with Article 20 of the Tax Code of the Russian Federation. In paragraph 3 of paragraph 1 of Article 20 of the Tax Code of the Russian Federation, it was determined that interdependent persons are recognized, in particular, as persons who, in accordance with the family legislation of the Russian Federation, are in marriage relationships, relationships of kinship or property, adoptive parent and adopted child, as well as trustee and ward . The definition of the concept of close relatives is given in Article 14 of the Family Code of the Russian Federation, but the concepts of relationships of kinship or property are not specified in the Family Code. In this regard, the list of interdependent persons was not clearly defined and the tax authorities, when determining it, in addition to the Tax and Family Code, relied on the Civil Code and the “All-Russian Classifier of Information on the Population. OK 018-95” (Letters of the Ministry of Finance of the Russian Federation dated January 31. 2012 N 03-04-08/9-12, dated 08/04/2011 N 03-02-08/86, Letter of the Federal Tax Service of Russia dated 04/19/2012 N ED-4-3/6609@).

As a result, regulatory authorities classified almost all close and distant relatives of an individual as interdependent persons: children, grandchildren, grandparents, great-grandparents, great-grandparents, nephews, nieces, uncles, aunts, full and half brothers and sisters, cousins, spouse , parents, stepsons, stepdaughters, stepfather, stepmother and others.

In addition to their relatives, the controlling authorities also included in the concept of “property relations” relations arising between a spouse and relatives of the other spouse, as well as between relatives of spouses.

That is, for transactions concluded before January 1, 2012, when purchasing housing from almost any relative or relative of a spouse, a tax deduction could not be provided.

How will the tax authorities discover that housing was purchased from relatives?

The most frequently asked question among citizens who want to receive a tax deduction when purchasing real estate from relatives is the question of how the tax office can find out that the seller and buyer are related. The tax authorities do not yet have unambiguous and guaranteed methods for detecting this fact. Tax inspectors compare various data (for example, last names, places of registration), check data against the databases of civil registration authorities, and may also ask the buyer-taxpayer to write a written confirmation that he is not related to the seller.

Although sometimes citizens manage to hide the fact of kinship from the tax office and receive a deduction, it should be noted that this is not legal, and if the hidden fact is subsequently discovered, it will be necessary to return the deduction in full.

Purchasing housing from relatives not under a sales contract and property deduction

Clause 5 of Art. 220 of the Tax Code of the Russian Federation contains a restriction on receiving a tax deduction when purchasing an apartment/house from relatives only in relation to purchase and sale transactions. According to the regulatory authorities, when purchasing housing not under a purchase and sale agreement, but under another agreement (for example, an agreement on assignment of the right of claim), the deduction cannot be denied (Letters of the Ministry of Finance of Russia dated August 21, 2014 N 03-04-05/41883 , dated 03/07/2013 N 03-04-05/4-194, dated 12/12/2012 N 03-04-05/4-1390, Federal Tax Service of Russia dated 02/11/2012 N ED-3-3/3991@).

Example: The father entered into a share participation agreement in the construction of housing and paid for the apartment. Later, the father sold the apartment to his son under an assignment of claims. The transfer of funds to the father was recorded in the receipt. After signing the acceptance certificate for the apartment, the son submitted documents for deduction to the tax office. Despite the fact that a deal was concluded between father and son, a tax deduction will be provided to the son (since the restriction on receiving a deduction in transactions with related parties applies only to purchase and sale agreements).